by Gabriella Agostinelli

Whether a farmer has one cow or a thousand cows, he is often beholden to the same costly federal and state safety regulations concerning his farm and food production. Consequently, small farmers often feel they are put at a grave financial disadvantage. The passage of the Food Safety Modernization Act in 2011, with its increased food safety regulations, only heightened many farmers’ fear of facing additional costs.

"I Lead"

“I Lead”

In 2011, several small towns in Maine began passing local food ordinances, also known as food sovereignty ordinances, in response to this fear. Essentially, the ordinances attempt to circumvent state and federal food/farm safety regulations to cut costs for small-scale farmers. These ordinances are not specific to Maine, either. Similar ordinances have been passed by municipalities in Vermont, Massachusetts, and California. The Maine ordinance states:

Producers or processors of local foods . . . are exempt from licensure and inspection provided that the transaction is only between the producer or processor and a patron when the food is sold for home consumption. This includes any producer or processor who sells his or her products at farmers’ markets or roadside stands . . . through farm-based sales directly to a patron; or delivers his or her products directly to patrons.

Most significantly, they also boldly state that “[i]t shall be unlawful for any law or regulation adopted by the state or federal government to interfere with the rights recognized by this Ordinance.”

Supporters of these ordinances see no need for burdensome and expensive regulatory safeguards where each person is able to “educate themselves and make informed decisions” about their food consumption. As a result, they view most federal and state regulations as impediments to local food production, and “a usurpation” of citizens’ right to make their own food choices. The right to a local food system, they say, gives way to an inherent right to self-government.

Despite the fact that Maine’s ordinances have not yet been struck down as unconstitutional, a court recently found farmer Dan Brown in violation of state law when he sold raw milk without a license, even though he lives in a town (Blue Hill) with a local food ordinance.

While one can appreciate the rationale behind these ordinances, a flat out rejection of federal and state oversight raises obvious constitutional concerns. The local-federal preemption issue may be less severe where a locality can prove their sales are purely intrastate in nature. The local-state preemption issue, however, presents a greater point of contention.  Usually, preemption concerns arise when a state or municipality passes a law or ordinance that imposes additional or stricter standards. However, a larger concern arises where a locality attempts to completely exempt itself from federal/state laws and regulations, as with local food ordinances.

Local preemption of state law is only supportable where a state follows home rule, that is, grants cities, municipalities, and/or counties the ability to pass laws to govern themselves as they see fit. While Maine’s constitution supports home-rule, it also suggests that this municipal power shall not be granted where an ordinance “would frustrate the purpose of any state law.” This determination is usually made on a case-by-case basis, as a court must consider if a particular act (e.g. allowing farmers to sell raw milk without a license) specifically frustrates the purpose of related state law.

Ultimately, the Brown court could not find for the farmer after determining that selling raw milk without a license “prevents the efficient accomplishment of a defined state purpose,” thus frustrating the purpose of state law. See State v. Brown, ELLSC-CV-11-70 at 9 (Me. Super. Ct., Han. Cty,. April. 27, 2013) (citing E. Perry Iron  & Metal Co., Inc. v. City of Portland, 2008 Me 10, 10).

Our guess is that Brown is just the first of many farmers to be similarly challenged in the future. The ordinances still stand, but it may just be a matter of time.